Blue Slipping

Another constitutional challenge to Obamacare.

At issue in the Supreme Court’s most important case last year was the constitutionality of the “individual mandate” in the Patient Protection and Affordable Care Act, aka Obamacare. The mandate, which takes effect in 2014, requires most Americans without health insurance to buy a policy providing a minimum level of coverage as defined by the government or else make to the Internal Revenue Service a “shared responsibility payment,” which the law describes as a “penalty.” For individuals lacking the minimum essential coverage, the penalty when fully phased in will be 2.5 percent of income per year. For families it will be $695 per uninsured family member per year or 2.5 percent of income, whichever is higher, up to a maximum of $2,085.

In National Federation of Independent Business v. Sebelius, in the pivotal opinion in the case, Chief Justice John Roberts said that the Commerce Clause grants Congress the power to “regulate commerce” but not to compel it. Because the latter is what the mandate aims to do, he continued, it can’t be supported as an exercise of the Commerce Clause. However, adopting a “saving construction” of the law, he read the mandate as imposing not a penalty but a tax on those without insurance. And because it was “just a tax hike,” as he called it, the mandate was permissible, a legitimate exercise of Congress’s enumerated power “to lay and collect Taxes.”

Roberts summed up the law this way: “The Federal Government does not have the power to order people to buy health insurance. . . . [It] does have the power to impose a tax on those without health insurance.”

Not surprisingly, given its continuing unpopularity, the individual mandate is being taken again to court. Matt Sissel, who runs an art studio and gallery in Cedar Rapids, Iowa, objects to the government’s effort, as he puts it, to conscript him into a health care program. He would pay his own health care expenses out of pocket. Sissel was among the many parties that challenged, on the basis mainly of the Commerce Clause, the constitutionality of the mandate in the group of cases that resulted in NFIB. Since that case was handed down, Sissel has declined to end his objection to Obamacare and is now advancing another constitutional argument against it.

In NFIB, Chief Justice Roberts wrote that “any tax must . . . comply with the other requirements in the Constitution.” Roberts found that the tax for not having health insurance complies with certain constitutional requirements. But he didn’t address whether it satisfies Article I, Section 7, Clause 1, which provides: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The clause is known as the Origination Clause, and Sissel’s new claim is that if the individual mandate is to be read as an exercise of the congressional power to lay taxes, then it is unconstitutional, since it is a “bill for raising revenue” that originated in the Senate and not, as it should have, in the House of Representatives.

The government says, to the contrary, that the Affordable Care Act (ACA) originated in the House and is not “a bill for raising revenue.” And because it is not such a bill, its enactment, the government says, would have been consistent with the clause even if, for the sake of argument, it had originated in the Senate.

The Origination Clause is one of those parts of the Constitution that define the structure of the government and how it is to operate. And it originated, you could say, in the Constitutional Convention of 1787 with those Framers who wanted to ensure that the “power over the purse” lay with the legislative body closer to the people. Thus, as Case Western Reserve University law school professor Erik Jensen writes in the Heritage Guide to the Constitution, Elbridge Gerry of Massachusetts proposed a clause that would have required all money bills to originate in the House and given the Senate no power to amend. With proponents of national power opposing an origination clause in any form​—​James Wilson of Pennsylvania said that “if both branches were to say yes or no, it was of little consequence which should say yes or no first”​—​the clause that was finally agreed upon, Jensen says, was “closer to Wilson’s vision than to Gerry’s,” requiring that only bills for raising revenue originate in the House, and giving the Senate the amendment power.